June 23, 1964
COMMONWEALTH EX REL. ORTH, APPELLANT,
Appeal, No. 56, Oct. T., 1964, from order of Court of Common Pleas of Bucks County, May T., 1963, No. 1308, in case of Commonwealth ex rel. Oscar R. Orth v. Alfred T. Rundle, Warden. Remanded.
Peter A. Glascott, Assistant Defender, for appellant.
Roland E. Sykes, Assistant District Attorney, with him William J. Carlin, District Attorney, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. 450
[ 203 Pa. Super. Page 450]
OPINION BY WOODSIDE, J.
This is an appeal from the refusal of the Court of Common Pleas of Bucks County to grant a writ of habeas corpus to Oscar R. Orth, a prisoner in a state correctional institution who had been sentenced on February 4, 1941, to not less than eight nor more than twenty years on a charge of armed robbery.*fn1 The petitioner had pleaded guilty to the charge without the assistance of counsel.
[ 203 Pa. Super. Page 451]
The lower court, after a full hearing at which the petitioner was represented by counsel, denied his petition on the ground that Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.ed.2d 799 (1963), is not retroactive. The hearing judge made no specific finding on whether the petitioner waived counsel, requested counsel or was unable, because of indigency or otherwise, to obtain counsel.
This case will be remanded, as specifically requested in the brief filed with this Court on behalf of the petitioner, "for further consideration in light of Gideon v. Wainwright," and in light of our opinion in Commonwealth ex rel. Goodfellow v. Rundle, 203 Pa. Superior Ct. 419, 201 A.2d 615 (1964), as finally determined by the Pennsylvania Supreme Court on our certification.